INDEX OF CASES ACCORDING ΤΟ SUBJECT-MATTER. Note. The figures refer to the number of the Page, and not to the number of the Case. Arbitration-Arbiter-Holder of office-Reference clause -A dispute arose between a seatholder of a nonestablished church and the management thereof in connection with the letting of a sitting. In an action of declarator at the instance of the seatholder against the church management the defenders maintained that the action should be dismissed in respect of an arbitration clause in the constitution of the church which provided that "If any disputes shall arise as to the interpretation of this constitution, the same shall be referred to the bishop, but there shall be a right of appeal to the Episcopal synod whose decision shall be final "—Held that as the reference was to a bishop, now deceased, and not to the holder for the time being of an office, the clause of reference was of no effect. Bankruptcy-Composition contract-Accession to composition agreement A. & Son purchased a quantity of goods which were delivered but not paid for. Subsequently the business of A. & Son was amalgamated with the business of G. S. under the firm name of A. & Son. The original firm of A. & Son, being in financial difficulties, instructed an accountant to call a meeting of their creditors. At this meeting a composition was submitted, and the representatives, while unable to bind their constituents, agreed to recommend the acceptance of the proposal. One of the creditors was represented by his son, who did not appear in the minutes of the proceedings as representing his father. The father refused to accept the composition and brought an action against A. & Son for the debt. Circumstances in which held that the son attended the meeting as his father's representative and had accepted the composition, that he had implied authority to accept, and that, as the composition was in the hands of the accountant, who was prepared to pay it, the action for payment of the price fell to be dismissed. M'Clung v. Ainslie 117 Election of trustee Qualification Adverse interest-Nominee of landlord of bankrupt elected at first meeting- Objection that claims against the landlord might probably emerge for the Bankruptcy Sequestration Trustee Election Objection to votes (1) that a creditor who had been "lady's companion " to the bankrupt's wife was a confident person; (2) that the document of debt which was granted in India had prescribed according to the law of India; and (3) that it was insufficiently stamped according to the law of India-Held that as the objections were not instantly verifiable they fell to be repelled. Munro v. Henderson Bankruptcy - Vesting of estate in trustee 87 Subjects Money, the Cir 2 improperly included in sequestration proceeds of forged cheques, found on person of accused -Ownership. A person was arrested for forging and uttering cheques. At the date of the arrest certain bank notes and coins were found upon his person and were taken possession of by the ProcuratorFiscal. The accused pleaded guilty and was sentenced. His estates were subsequently sequestrated. In the course of the bankruptcy proceedings an application was made by the bank which had suffered the loss to have the sum found on the accused withdrawn from the sequestration. cumstances in which held that the bank had identified part of the money obtained by means of the forged cheques and were entitled to recover it as their property, and that they were not entitled to recover any sum which they could not identify. Commercial Bank of Scotland v. Bolton Bankruptcy Vesting of estate in trustee Subjects improperly included in sequestration-Tool of trade. At the date of sequestration a bankrupt possessed patching and finishing machines which he used in carrying on the trade of a boot repairer. an action by the trustee in bankruptcy for delivery, circumstances in which held that the machines were necessary to the bankrupt in order to make a livelihood at his trade and were working tools, and as such were not attachable for debt. Morgan v. Browne Burgh Boundaries Resolutions by District Committee of County Council under Local Government (Scotland) Act, 1908 (8 Edw. VII. cap. 62), sections 14 (2), (A) to form a special scavenging district, and (B) to adopt for the purposes of the scavenging district the provisions contained in sections 107 to 127 and 258 to 255 of 128 THE SCOTS LAW TIMES-DIGEST (SHERIFF COURT). the Burgh Police (Scotland) Act, 1892, and section 24 of the Burgh Police (Scotland) Act, 1903-Objections by railway company that the station and portions of the railway included in the resolution did not require scavenging, and that they themselves provided for its scavenging, and were best fitted to provide for it--Objections repelled and resolutions confirmed-Lanarkshire and Ayrshire Railway Co. v. Renfrew County Council (Scotch County Council Cases, 127) followed. London and North-Eastern Railway v. 119 55 Carriage by sea-Bill of lading-Constitution of the contract-Contract between shippers and carriers concluded by letter on terms of sailing bill of which the shippers had a copy-Sailing bill referring to bill of lading in particular form-Goods forwarded to carrier, but no bill of lading given-Held that the goods were accepted by the carriers on the terms set forth in the sailing bill and bill of lading. Campbell v. United Steamship Company Carriage by sea-Bill of lading-Exception-Anticipation of risk from strikes-Ship failing to call for goods contracted to be carried through fear of delay by anticipated strike of dock labourers-Held that the carriers were protected by the exception. Campbell v. United Steamship Company Contract-Constitution — Church Sittings—A portion 55 of the sitting accommodation of a non-established church was reserved for the exclusive use of constituent members who might rent sittings, the remaining sitting accommodation being free and unappropriated. The practice of the management was to let the seats to any member for an annual rent payable in advance. The tenancy of the seatholders was not disturbed so long as the seats were not given up or the holder of the seat in arrears with the rent. The whole of the reserved portion was not fully let. The management intimated to a member and seatholder for many years that the pew which he then occupied or any other would not be relet to him although he was not in arrears with the rent thereof. In an action by the seatholder for a declarator that it was ultra vires of the management not to relet the pew occupied by him, held that the reletting of a sitting to the same seatholder for a series of years did not establish a legal right to the sitting, as the right to the sitting was one of permission. Queree v. Smith. 76 72 Crown Statute-Exemption of Crown from statutory restrictions-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17)— House taken on lease by War Office and let to a tenant-Held in an action of removing at the instance of the Lord Advocate as representing the War Office that the Act did not apply to the Crown. Lord Advocate v. Barlow Diligence-Poinding-Execution-Goods claimed by third party-Statement in execution that no third party had come forward to claim-Statement admitted to be untrue-Held that this misstatement was a defect in the execution which invalidated the diligence and interdict granted. Cameron v. Cuthbertson 67 Executor-Confirmation-Testamentary writing-Execution - Challenge-In an application for confirmation objections to the testamentary writing (1) that it was partly in print and partly in writing, in English form and not holograph of testator; (2) that the 96 96 Landlord and tenant-Factor-Reparation-Negligence Property in dangerous condition Liability of factor-An action was raised against the factor of a house for damages in respect of injuries caused by gas poisoning due to the defective condition of the service-pipe leading to the house. The factor had the entire management of the property and he refused to disclose to the pursuer's agents the names of the owners. The pursuer's agents used all reasonable means to ascertain the names-Held that the factor was personally liable. Kennedy v. Benson 102 Landlord and tenant-Housing, Town Planning, etc., Act, 1909 (9 Edw. VII. cap. 44), sections 14, 15, and 17 -House unfit for human habitation-Unfitness irremediable-Tenant justifiably refusing to pay rent -Local Authority declining to close house-Held (1) that as the landlord had not applied for an order for ejection he could not be heard to say that he was unable to get the tenant out owing to the Rent Restriction Acts; (2) that the inaction of the Local Authority was irrelevant in a question between landlord and tenant; and (8) that the statutory obligation of the landlord is absolute and impossibility of performance is no defence. Bell v. Gorman. 74 Landlord and tenant-Increase of Rent and Mortgage cap. 41), sections 1, 18, 14, and 15-Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sections 88 and 44, and First Schedule, Rule 119-Held that the Sheriff has discretion to allow any person whom he sees fit to appear for a party. Leiper 61 Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17), sections 8 (1) and 18 (1) (d)-House let for a year from Whitsunday 1920-Notice served upon tenant on 9th October 1920 of intended increase of rent to commence at Martinmas 1920-Second notice served upon tenant on 26th September 1921 of intended increase of rent to commence at Martinmas Loan-Money-lender-Money-Lenders Act, 1900 (63 & 64 1921-No notice to remove given-Held that the provisions of section 18 (1) (d) justified the increases only up to Whitsunday 1921, that the increases paid since that date were not properly exigible, and that accordingly the tenant was entitled to deduct the amount thus overpaid from the rent, and Molloy and Another v. Thomson (1923, S.L.T. (Sh. Ct.) 95) followed. Glass v. Crombie 6 Landlord and tenant-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17), section 5 (1)-Restriction on right to possession-Failure by tenant to keep interior of house adequately clean for the due safety of the health of any person occupying the house-Circumstances in which held that the condition of the house was not directly prejudicial to the due safety of the health of adjoining occupiers. Observed (1) that the Act contemplates only such uncleanliness as is a danger of direct infection to neighbours, or is of extraordinary danger through the transmitting medium of those in immediate contact with it; and (2) that the "nuisance" and the "deterioration" referred to in section 5 (1) (b) of the Act are distinct things, either of which if proved against a tenant might deprive him of the protection of the Act. Landlord and tenant-Outgoing-Notice to quit — Agricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), section 18-Agriculture Act, 1920 (10 & 11 Geo. V. cap. 76), section 34 (7)—Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sections 34, 35, 36, 87, and 39, and First Schedule, Rule 110-Double ish at Martinmas for arable lands, and at Whitsunday for grass lands-Notice given less than a year before first ish and more than a year before second ish-Held that where there is more than one ish, the period of notice counts back from the earliest ish and that the notice was not valid and timeous. Montgomerie v. Wilson Law agent 48 Agents for the poor-Nomination - Confirmation of nomination by Sheriff-Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), as amended by (2 & 3 Geo. V. cap. 28), First Schedule, Rules 152-160-Intimation by Sheriff to agents enrolled in Sheriff Court of district to nominate three agents for poor-Nomination by local society of three agents -Objections by nominee (1) that he was not a member of local society, and that notice by local society convening meeting did not intimate the purpose of the meeting; (2) that the other two nominees practised outside the Court town and he would have to do the whole work alone; and (3) that an additional agent should be appointed for the Court town-Objections sustained and the law agents enrolled in the Court ordered to meet of new and nominate four of their number to act as law agents for the poor. Smith-Objector 101 Law agent Privileges Unqualified person - Person not a law agent appearing on behalf of parties in Small Debt and Summary Removing CourtsSmall Debt (Scotland) Act, 1887 (7 Will. IV. & 1 Vict. Vict. cap. 51), section 1 (1) and (2)—Bill of exchange Cautioner-A firm of money-lenders sued A for the balance of the sum due under a bill of exchange accepted by him-A averred that he had previously accepted a bill in favour of the money-lenders, jointly with and as cautioner for B; that he was not informed that that bill was in security for advances previously made by the money-lenders to B; that when the bill became due, B.being bankrupt, he paid a sum to account and signed the bill now sued on, and that he had received no consideration for the bills-Held that the averments were relevant to go to proof, and as the acceptor of the bill was in the position of a surety, he was entitled to have the whole transactions, from the first loan to the original debtor, opened up under section 1 (2) of the Money-Lenders Act, 1900. Hurwitz v. R. 92 Loan-Money-lender-Money-Lenders Act, 1900 (63 & 64 94 Negligence-Streets-Lighting-Statutory duty on Corporation-Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. cap. 55) section 99-About 7 a.m., in December, a cyclist was cycling at a time when the street lamps had been extinguished and the street in darkness, when he heard a warning shout. The cyclist was going at the rate of six or seven miles an hour, was on his left or proper side of the road, and his bicycle lamp was lit. The warning proceeded from a scavenger engaged in cleaning the streets, who was working against the traffic, his barrow being wheeled close to the pavement on the left-hand side of the roadway. On hearing the warning the cyclist was about ten yards distant and did not and could not with the aid of his lamp see the scavenger or his barrow. He became alarmed at the shouting, applied his footbrake and swerved to the right. The streets were greasy, as a result of rain, and the cycle skidded, in consequence, the cyclist fell and broke his legCircumstances in which held that the Corporation had failed in their statutory and common law duty of lighting and keeping the streets safe for traffic and that the cyclist was not guilty of contributory negligence, and the Corporation found liable in damages. Nicoll v. Corporation of Perth 50 Parent and child-Affiliation-Evidence-Admission of paternity Subsequent denial-M. gave birth to an illegitimate child on 18th July 1920. On 8th July M.'s law agent wrote S. that M. was to be confined on 19th July. On 12th July S.'s law agent replied admitting paternity and liability, and on 24th July S. paid the inlying expenses and the first quarter's aliment. After the payment on 24th July no further claim was made till October 1921 when S. repudiated the paternity of the child on the ground that M. had stated to a third party that S. was not the father. The child became chargeable to the parish, and in an action by the Inspector of Poor, against M. and S. for the maintenance of the child, S. admitted one act of intercourse on a date outwith the period of gestation Personal bar-Ejection after due notice to quit had been served-Landlord returning tenant for 1922-23 as the tenant for 1923-24 in compulsory statutory return under the Lands Valuation Act, 1854Legislature passing the Rent, etc., Restriction (Continuance) Act continuing previous Act until 81st July 1923-New Rent, etc., Restriction Act then coming into force and tenant's right to occupy becoming terminable by virtue of that Act (13 & 14 Geo. V. cap. 32), sections 4, "5 (1) (d) (iii)," in respect that the pursuer became proprietrix before 30th June 1922, provided, however, that she could prove that she reasonably required the house for occupation by herself and family-Return to Assessor pled by way of personal bar as shewing that the proprietrix had waived the notice to quit and had entered into a contract of let for the year 1923-24 with the tenant for the previous year-Held that the return to the Assessor did not amount to personal bar on the ground of waiver, and did not prove a contract of lease for the year 1923-24, and proof allowed as to whether the proprietrix reasonably required the house for occupation as a residence for herself and family. Purves v. Graham Prescription-Triennial-Maintenance and AttendanceAct 1579, cap. 80—Claim against executor for repayment of sums expended in maintenance of deceased capax-Held that the claim fell within the Triennial Prescription Act. Gilbert v. Hannah 20 86 Process - Removal Church sitting-Notice to quitSitting held for series of years by same seatholderThe management of a non-established church intimated to a seatholder by letter that they would not relet his sitting to him-Held (1) that tacit relocation was not applicable to a sitting; and (2) that a peace-warning is not required under the Sheriff Courts (Scotland) Act, 1907, section 37, and Rules 112 and 113. Process-Title to sue-Reparation-Negligence-A father, as tutor of his pupil children, claimed damages from the landlord of the house let to him for injury from gas poisoning sustained by them while residing with him in that house. He averred that the gas escaped from the service-pipe leading from the gas main to the tenement in which the house was situated and that the pipe was under the control of the defenderHeld that the father as tutor had a title to sue. Kennedy v. Benson Process Writ - 102 Competency Action by a firm of brewers craving production of a statement of all bottles in possession of an innkeeper belonging to them, and, failing production of such statement, then for delivery of a stated number of such bottles Innkeeper admittedly in possession of bottles Held that the action was competent. J. & R. Tennent Limited v. Samson 44 Process-Writ-Style-Money-Lenders Act, 1900 (63 & 64 Vict. cap. 51)-Form of initial writ where a trustee in bankruptcy desires to open up the transactions between the bankrupt and a money-lender. Robertson v. Hurwitz. 94 Revenue Dog licence-Dogs kept on farms or by shepherds-Application for consent to exemption from duty-Dog Licences Act, 1867 (30 & 31 Vict. cap. 5), sections 3 and 8-Customs and Inland Revenue Act, 1878 (41 & 42 Vict. cap. 15), section 22 -Dogs Act, 1906 (6 Edw. VII. cap. 32), section 5C.A.S., Book L,. cap. xii.-Held that to entitle an owner to exemption the dog must be either (1) kept only on a farm, and not merely kept, but used only for tending sheep or cattle; or (2) kept and used only by a shepherd, and only in pursuit of his calling as such. Ross and Others v. Alexander 69 Reparation - Inciting to breach of contract- Lawful act done with malicious motive-The management of a non-established church had declined to relet a sitting to a member and seatholder. The seatholder brought an action against the management to have it declared that they had, in so doing, acted ultra vires; |